cle Rules of Evidence CRI037

Real Evidence for
the Trial Practitioner
Presented by:
Peter J. Moschetti Jr.
Brian H. Breedlove
Pennock, Breedlove & Noll, LLP
Mark J. McCarthy
Harris Beach PLLC
John T. Wilkins
phone : 866-466-2253 · web : www.nacle.com · email : info@nacle.com

Real Evidence for
the Trial Practitioner
Prepared by:
Peter J. Moschetti Jr.
Brian H. Breedlove
Pennock, Breedlove & Noll, LLP
Mark J. McCarthy
Harris Beach PLLC
John T. Wilkins
© 2007 Lorman Education Services. All Rights Reserved.
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Latham, NY • March 7, 2007

REAL EVIDENCE FOR THE TRIAL PRACTITIONER
I. ETHICS AND EVIDENCE.....................................................................................................................3
II. MOTIONS IN LIMINE.........................................................................................................................27
A. History Of Use.............................................................................................................................27
B. State Court...................................................................................................................................30
C. Federal Court...............................................................................................................................31
III. FOUNDATIONS...................................................................................................................................37
IV. SCIENTIFIC AND EXPERT EVIDENCE IN STATE AND FEDERAL COURTS..........................47
PRACTICAL HEARSAY
I. WHAT IS HEARSAY.............................................................................................................................57
II. EXCEPTIONS TO THE HEARSAY RULE..........................................................................................59
III. STRATEGIES FOR ADDRESSING HEARSAY PROOF .............................................................. 113
PRACTICAL COURTROOM EVIDENCE DIRECT/CROSS-EXAMINATION
I. PROPER FORM OF QUESTIONS ................................................................................................. 119
II. DOCUMENTARY AND DEMONSTRATIVE EVIDENCE........................................................... 121
III. SCOPE OF CROSS-EXAMINATION............................................................................................. 123
IV. CROSS-EXAMINATION ON COLLATERAL MATTERS............................................................ 124
V. IMPEACHMENT OF A NON-EXPERT WITNESS....................................................................... 124
TABLE OF CONTENTS i

PENNOCK, BREEDLOVE & NOLL, LLP
ATTORNEYS AT LAW

1407 RT. 9, Nine North
Building 4, 2nd
Floor
Clifton Park, New York 12065
John H. Pennock, Jr. Tel (518) 383-9400
Brian H. Breedlove Fax (518) 383-1959
Carrie McLoughlin Noll
Tracy M. Larocque
Sara E. Paupini
ETHICS AND EVIDENCE
Respectfully submitted
BRIAN H. BREEDLOVE, ESQ.
1

ETHICS AND EVIDENCE
1. Ethical responsibilities regarding evidence collection and presentation during
the course of litigation starts with your retainer.
2. Your clients must be educated to your ethical obligations re: their case. Most
clients’ think we are all accomplished cheats, liars and master manipulators of evidence,
all to the good. Some want to hire us for that very reason. You must cure this
misconception from the outset by explaining with great care:
a. Their view of how to proceed vs. yours;
b. their view of important facts vs. yours;
c. the importance of the truth throughout the litigation;
d. their position to the extent that you can understand it at the first
meeting in order to give proper advice; (litigation is not always the answer)
e. advise that they will testify and what your responsibility is if you
become aware that they have not been truthful;
f. advise as to what to expect in discovery and the need to be
forthcoming; (no shredding)
g. advise that you must act in a professional manner at all times with the
court and adversary;
3

QUERY: What do you do if you know your client, in an ancillary
proceeding, lied under oath. You represented her before proceeding but
she knew you would not go along with perjury so she proceeded on her
own and was successful; she now comes to you with regard to litigation on
same issues?
QUERY: What do you do if your client gets on the stand in the middle of a
proceeding and he/she tells a completely different story than he/she has
told you?
Section 1200.32 [DR 7-101] Representing a client zealously.
(a) A lawyer shall not intentionally:
(1) Fail to seek the lawful objectives of the client through reasonably available means
permitted by law and the disciplinary rules, except as provided by subdivision (b) of this
section. A lawyer does not violate this disciplinary rule, however, by acceding to
reasonable requests of opposing counsel which do not prejudice the rights of the
client, by being punctual in fulfilling all professional commitments, by avoiding
offensive tactics, or by treating with courtesy and consideration all persons
involved in the legal process……..
(b) In the representation of a client, a lawyer may:
(1) Where permissible, exercise professional judgment to waive or fail to assert
a right or position of the client.
(2) Refuse to aid or participate in conduct that the lawyer believes to be
unlawful, even though there is some support for an argument that the conduct is
legal.
Section 1200.33 [DR 7-102] Representing a client within the bounds of the law.
(a) In the representation of a client, a lawyer shall not:
(1) File a suit, assert a position, conduct a defense, delay a trial, or take other
action on behalf of the client when the lawyer knows or when it is obvious that
such action would serve merely to harass or maliciously injure another.
4

(2) Knowingly advance a claim or defense that is unwarranted under existing
law, except that the lawyer may advance such claim or defense if it can be
supported by good faith argument for an extension, modification, or reversal of
existing law.
(3) Conceal or knowingly fail to disclose that which the lawyer is required by
law to reveal.
(4) Knowingly use perjured testimony or false evidence.
(5) Knowingly make a false statement of law or fact.
(6) Participate in the creation or preservation of evidence when the lawyer
knows or it is obvious that the evidence is false.
(7) Counsel or assist the client in conduct that the lawyer knows to be illegal or
fraudulent.
(8) Knowingly engage in other illegal conduct or conduct contrary to a
disciplinary rule.
(b) A lawyer who receives information clearly establishing that:
(1) The client has, in the course of the representation, perpetrated a fraud upon
a person or tribunal shall promptly call upon the client to rectify the same, and if
the client refuses or is unable to do so, the lawyer shall reveal the fraud to the
affected person or tribunal, except when the information is protected as a
confidence or secret.
(2) A person other than the client has perpetrated a fraud upon a tribunal shall
promptly reveal the fraud to the tribunal.
In re Truong (1 Dept. 2003) 768 N.Y.S.2d 450 Attorney's conduct of proffering a
forged document as evidence and offering false testimony in support of the document,
….. constituted violations of Rules of Professional Conduct prohibiting conduct involving
dishonesty, conduct prejudicial to the administration of justice, harassment, advancing
an unwarranted claim, and using false evidence.
5

In re Capoccia (3 Dept. 2000) 709 N.Y.S.2d 640, 272 A.D.2d 838, leave to appeal
dismissed 738 N.E.2d 782, 715 N.Y.S.2d 378, 95 N.Y.2d 887 Attorney's repeated
sanctionable conduct of asserting defenses and counterclaims without making good-
faith inquiry into their applicability to any given case as part of an intentional strategy to
delay litigation and to harass his opponents in order to extract settlements in routine
consumer collection cases violated disciplinary rules barring conduct prejudicial to the
administration of justice, conduct adversely reflecting on fitness to practice law,
harassing conduct, conduct involving dishonesty, fraud, deceit or misrepresentation,
and knowingly advancing unwarranted claims or defenses.
People v. DePallo 96 N.Y.2d 437, 754 N.E.2d 751, 729 N.Y.S.2d 649, 2001 Court of
Appeals Defendant was not deprived of his right to effective assistance of counsel when
his attorney disclosed to the trial court that defendant intended to commit perjury during
his trial testimony. An attorney who receives information that a client has perpetrated a
fraud upon a tribunal must ask the client to rectify the same, and if the client refuses to
do so, the lawyer shall reveal the fraud to the tribunal, except when the information is
protected as a confidence or secret (DR 7-102 [b] [1] [22 NYCRR 1200.33 (b) (1)]).
Here, defense counsel first sought to dissuade defendant from testifying falsely, and
indeed from testifying at all. When defendant insisted on perjuring himself, counsel
properly notified the court. Counsel did not reveal the substance of any client
confidence, as the intent to commit a crime is not a protected confidence, and
defendant had already admitted at a pre-trial hearing that he had forced one of his
accomplices to participate in the crime under threat of death. Nor should counsel have
sought to withdraw from the case, for to do so would have done little to resolve the
problem and might have facilitated any fraud defendant wished to perpetrate upon the
court. Counsel's actions properly balanced the duties he owed to his client and to the
court and criminal justice system.
Defendant's right to be present during a material stage of his trial was not violated by
his absence from the ex parte conference between the trial court and defense counsel
to place on the record matters which had already occurred regarding defendant's
perjury and defense counsel's response.
6

People v. Berroa, 287 A.D.2d 88, 733 N.Y.S.2d 52, (2001 First Department)
Defendant, who was convicted of murder in the second degree, was not deprived of
effective assistance of counsel where defense counsel stipulated in open court that two
defense witnesses had not told her prior to their alibi testimony at trial that defendant
had been elsewhere at the time of the shooting. After the stipulation was read to the
jury, defense counsel indicated that the pivot point of the case was misidentification,
and that the jury was free to "look at," or "disregard" the alibi testimony. Under these
circumstances, defendant has failed to demonstrate the absence of strategic or other
legitimate explanations for defense counsel's conduct. Defense counsel's motivation
in agreeing to the stipulation was not the result of a desire to protect her
reputation, but was the result of her obligation to comply with ethical standards
requiring an attorney to prevent and disclose frauds upon the court (see, Code of
Professional Responsibility DR 1-102 [a] [4], [5]; DR 7- 102 [a] [3], [6] [22 NYCRR
1200.3 (a) (4), (5); 1200.33 (a) (3), (6)]). Moreover, there was no violation of the
advocate-witness rule (see, DR 5-102 [b] [22 NYCRR 1200.21 (b)]) that would
support a claim of ineffective assistance of counsel. A defense attorney's stipulation, or
even testimony, to facts facially adverse to the client does not ipso facto constitute
ineffective assistance of counsel or a violation of the advocate-witness rule. The
determinative consideration is whether counsel's decision to stipulate to certain facts
could be viewed as part of a legitimate defense strategy that a "reasonably competent
attorney" might have pursued under similar circumstances. The record indicates that
defense counsel's decision to stipulate was a legitimate tactic designed to minimize the
potential damage to defendant's case, and may have been the preferred method to deal
with the witnesses' perjury under the circumstances. Finally, defendant failed to
demonstrate that he suffered any prejudice in view of the overwhelming evidence
against him.
Section 1200.37 [DR 7-106] Trial conduct.
(a) A lawyer shall not disregard or advise the client to disregard a standing rule
of a tribunal or a ruling of a tribunal made in the course of a proceeding, but the
lawyer may take appropriate steps in good faith to test the validity of such rule or
ruling.
7

(b) In presenting a matter to a tribunal, a lawyer shall disclose:
(1) Controlling legal authority known to the lawyer to be directly adverse to the
position of the client and which is not disclosed by opposing counsel.
(2) Unless privileged or irrelevant, the identities of the clients the lawyer
represents and of the persons who employed the lawyer.
(c) In appearing as a lawyer before a tribunal, a lawyer shall not:
(1) State or allude to any matter that he or she has no reasonable basis to
believe is relevant to the case or that will not be supported by admissible
evidence.
(2) Ask any question that he or she has no reasonable basis to believe is
relevant to the case and that is intended to degrade a witness or other person.
(3) Assert personal knowledge of the facts in issue, except when testifying as a
witness.
(4) Assert a personal opinion as to the justness of a cause, as to the credibility
of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence
of an accused; but the lawyer may argue, upon analysis of the evidence, for any
position or conclusion with respect to the matters stated herein.
(5) Fail to comply with known local customs of courtesy or practice of the bar or
a particular tribunal without giving to opposing counsel timely notice of the intent
not to comply.
(6) Engage in undignified or discourteous conduct which is degrading to a
tribunal.
(7) Intentionally or habitually violate any established rule of procedure or of
evidence.
8

See: People v Levandowski, 2004 WL 1405922 (N.Y.A.D. 3 Dept.), 2004 N.Y. Slip
Op. 05494 Supreme Court, Appellate Division, Third Department, New York. For
multiple violations of these trial rules by a prosecutor. Special rules pertain to public
prosecutors as well, set forth below.
Section 1200.34 [DR 7-103] Performing the duty of public prosecutor or other
government lawyer.
(a) A public prosecutor or other government lawyer shall not institute or cause to be
instituted criminal charges when he or she knows or it is obvious that the charges are
not supported by probable cause.
(b) A public prosecutor or other government lawyer in criminal litigation shall make
timely disclosure to counsel for the defendant, or to a defendant who has no counsel, of
the existence of evidence, known to the prosecutor or other government lawyer, that
tends to negate the guilt of the accused, mitigate the degree of the offense or reduce
the punishment.
3. Witness contacts. Extreme care must be taken in assembling evidence
whether by witness statement or contact or in assembling documents or things for
presentation in court.
a. Beware the advocate witness rule;
1. scene visit immediately after an accident and participation in
collecting evidence and/or measurements might not be wise if you
intend to litigate the case:
2. taking a witness statement is ripe with hazard. You might need
a witness to the statement in the event of a recantation or claim of
overreaching or fraud etc. Get an investigator; stay away from the
witness until trial or deposition; make sure the statement is in
writing, recorded is best and video even better;
3. contacting your advesaries clients and/or employees.
9

4. intimidation of a witness.
Section 1200.36 [DR 7-105] Threatening criminal prosecution.
(a) A lawyer shall not present, participate in presenting, or threaten to present
criminal charges solely to obtain an advantage in a civil matter.
Section 1200.35 [DR 7-104] Communicating with represented and unrepresented
parties.
(a) During the course of the representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the
representation with a party the lawyer knows to be represented by a lawyer in that
matter unless the lawyer has the prior consent of the lawyer representing such
other party or is authorized by law to do so.
(2) Give advice to a party who is not represented by a lawyer, other than the
advice to secure counsel, if the interests of such party are or have a reasonable
possibility of being in conflict with the interests of the lawyer's client.
(b) Notwithstanding the prohibitions of subdivision (a) of this section, and
unless prohibited by law, a lawyer may cause a client to communicate with a
represented party, if that party is legally competent, and counsel the client with
respect to those communications, provided the lawyer gives reasonable advance
notice to the represented party's counsel that such communications will be
taking place.
10

QUERY: CAN A LAWYER ADVISE A CLIENT TO CONTACT AND DISCUSS
RELEVANT ISSUES IN EMPLOYMENT LAW CONTEXT DURING LITIGATION
WHEN SPECIFICALLY PROHIBITED BY ADVERSARY LAWYER? SEE SECTION
a1 vs section b; does b completely abrogate consent of employees lawyer to the
point wherein employees lawyer objects to any such contact and contact made
anyway in light of section b. Add in factor that employee will be terminated if
employee does not contact and “cooperate”; now add in further factor that any
enforced contact with employee by discriminator or harasser is forbidden by case
law in such cases and in itself could be retaliatory; can evidence assembled in
meetings be used in ongoing title 7 suit;
In re Chan, 2003, 271 F.Supp.2d 539, Disciplinary rule barring lawyer from
communicating with represented party without consent of party's lawyer applies to
criminal as well as civil actions.
Gidatex, S.r.L. v. Campaniello Imports, Ltd., 1999, 82 F.Supp.2d 119, 53 U.S.P.Q.2d
1008 Furniture manufacturer's counsel did not violate New York rule against
communicating with represented parties by having private investigators secretly tape
conversations with terminated distributor's salespeople, in effort to gain evidence in
trademark infringement suit; investigators did not intrude upon distributor's attorney-
client privilege or attempt to use superior legal knowledge to take advantage of
salespeople.
McHugh ex rel. Kurtz v. Fitzgerald 719 N.Y.S.2d 785, 280 A.D.2d 771(3 Dept. 2001)
Law firm did not violate rule prohibiting lawyers from communicating directly with
adverse parties who are represented by counsel when it obtained affidavit from dog
owner in dog bite case before her insurer had retained counsel to represent her, even
though litigation had already commenced.
11

Commencement of litigation is not criteria for determining whether communication with
adverse party is in derogation of rule precluding lawyers from having direct
communication with adverse parties who are represented by counsel; lawyer can act in
violation of rule even where litigation has not yet commenced. McHugh, supra
Nassau Health Care Corp. v. New York State Ethics Com'n, 2003, 764 N.Y.S.2d
795, 196 Misc.2d 867 State Ethics Commission's determination to bar corporate
counsel representing operator of medical center from its interviews with operator's state
employees during investigation of employees' alleged ethical wrongdoing was not
arbitrary and capricious, where operator and its high-level employees were not "parties"
for purposes of disciplinary rule prohibiting attorney from communicating directly with
adverse parties known to have counsel, and presence of corporate counsel would have
had chilling effect on candor of employees.
In re Harris 694 N.Y.S.2d 678, 259 A.D.2d 170 (2 Dept. 1999) Attorney's
communications with parties whom he knew to be represented by attorney about
subject matter of their representation violated applicable professional responsibility
rules.
12

4. Witness preparation.
a. whether client or non-party start and end your discussions with “ TELL
THE TRUTH”.
b. I always tell witnesses to tell the truth and do not worry about the
consequences; it is my job to make the true facts fit properly into a
coherent theme in the case.
c. you can discuss testimony and how to present it; even words to use;
d. you can advise to answer only question asked on cross examination,
nothing more and nothing less;
e. you must not intentionally mislead in the process;
YOUR CLIENT MUST UNDERSTAND THAT YOU CAN WIN WITH THE
TRUTH; IF YOU CAN’T THEN THE CLIENT MUST REEVALUATE
HIS/HER POSITION AS TO WHAT IT MEANS TO WIN IN ANY
PARTICULAR CASE;
5. Improperly obtained evidence.
a. client takes papers and documents left on deposition table or counsel
table in court;
b. illegal wiretap;
c. client steals documents from employer;
13

d. misuse of subpoena (issuance out of jurisdiction, without proper notice,
securing private records(meds, college records, employment records etc)(
see new subpoena provisions CPLR 3120 AND 2303)
N.Y. County Op. 730 (2002) A lawyer who receives inadvertently disclosed privileged
information must, upon recognizing its privileged nature and without further review or
use thereof, notify the sender and follow the sender's instructions regarding the return or
destruction of the material.
14

STANDARDS OF CIVILITY
Preamble
The New York State Standards of Civility for the legal profession set forth principles of
behavior to which the bar, the bench and court employees should aspire. They are not
intended as rules to be enforced by sanction or disciplinary action, nor are they intended
to supplement or modify the Rules Governing Judicial Conduct, the Code of
Professional Responsibility and its Disciplinary Rules, or any other applicable rule or
requirement governing conduct. Instead they are a set of guidelines intended to
encourage lawyers, judges and court personnel to observe principles of civility and
decorum, and to confirm the legal profession’s rightful status as an honorable and
respected profession where courtesy and civility are observed as a matter of course.
The Standards are divided into four parts: lawyers’ duties to other lawyers, litigants and
witnesses; lawyers’ duties to the court and court personnel; court’s duties to lawyers,
parties and witnesses; and court personnel’s duties to lawyers and litigants.
As lawyers, judges and court employees, we are all essential participants in the judicial
process. That process cannot work effectively to serve the public unless we first treat
each other with courtesy, respect and civility.
LAWYERS’ DUTIES TO OTHER LAWYERS, LITIGANTS AND WITNESSES
I. Lawyers should be courteous and civil in all professional dealings with other
persons.
A. Lawyers should act in a civil manner regardless of the ill feelings that their clients
may have toward others.
B. Lawyers can disagree without being disagreeable. Effective representation does not
require antagonistic or acrimonious behavior. Whether orally or in writing,lawyers should
avoid vulgar language, disparaging personal remarks or acrimony toward other counsel,
parties or witnesses.
15

C. Lawyers should require that persons under their supervision conduct themselves with
courtesy and civility.
II. When consistent with their clients’ interests, lawyers should cooperate with
opposing counsel in an effort to avoid litigation and to resolve litigation that has
already commenced.
A. Lawyers should avoid unnecessary motion practice or other judicial intervention by
negotiating and agreeing with other counsel whenever it is practicable to do so.
B. Lawyers should allow themselves sufficient time to resolve any dispute or
disagreement by communicating with one another and imposing reasonable and
meaningful deadlines in light of the nature and status of the case.
III. A lawyer should respect the schedule and commitments of opposing counsel,
consistent with protection of the client’s interests.
A. In the absence of a court order, a lawyer should agree to reasonable requests for
extensions of time or for waiver of procedural formalities when the legitimate interests of
the client will not be adversely affected.
B. Upon request coupled with the simple representation by counsel that more time is
required, the first request for an extension to respond to pleadings ordinarily should be
granted as a matter of courtesy.
C. A lawyer should not attach unfair or extraneous conditions to extensions of time. A
lawyer is entitled to impose conditions appropriate to preserve rights that an extension
might otherwise jeopardize, and may request, but should not unreasonably insist on,
reciprocal scheduling concessions.
16

D. A lawyer should endeavor to consult with other counsel regarding scheduling matters
in a good faith effort to avoid scheduling conflicts. A lawyer should likewise cooperate
with opposing counsel when scheduling changes are requested, provided the interests
of his or her client will not be jeopardized.
E. A lawyer should notify other counsel and, if appropriate, the court or otherpersons at
the earliest possible time when hearings, depositions, meetings or conferences are to
be canceled or postponed.
IV. A lawyer should promptly return telephone calls and answer correspondence
reasonably requiring a response.
V. The timing and manner of service of papers should not be designed to cause
disadvantage to the party receiving the papers.
A. Papers should not be served in a manner designed to take advantage of an
opponent’s known absence from the office.
B. Papers should not be served at a time or in a manner designed to inconvenience an
adversary.
C. Unless specifically authorized by law or rule, a lawyer should not submit papers to
the court without serving copies of all such papers upon opposing counsel in such a
manner that opposing counsel will receive them before or contemporaneously with the
submission to the court.
VI. A lawyer should not use any aspect of the litigation process, including
discovery and motion practice, as a means of harassment or for the purpose of
unnecessarily prolonging litigation or increasing litigation expenses.
A.A lawyer should avoid discovery that is not necessary to obtain facts or perpetuate
testimony or that is designed to place an undue burden or expense on a party.
17

B. A lawyer should respond to discovery requests reasonably and not strain to interpret
the request so as to avoid disclosure of relevant and non-privileged information.
VII. In depositions and other proceedings, and in negotiations, lawyers should
conduct themselves with dignity and refrain from engaging in acts of rudeness
and disrespect.
A. Lawyers should not engage in any conduct during a deposition that would not be
appropriate in the presence of a judge.
B. Lawyers should advise their clients and witnesses of the proper conduct expected of
them in court, at depositions and at conferences, and, to the best of their ability, prevent
clients and witnesses from causing disorder or disruption.
C. A lawyer should not obstruct questioning during a deposition or object to deposition
questions unless necessary.
D. Lawyers should ask only those questions they reasonably believe are necessary for
the prosecution or defense of an action. Lawyers should refrain from asking repetitive or
argumentative questions and from making self-serving statements.
VIII. A lawyer should adhere to all express promises and agreements with other
counsel, whether oral or in writing, and to agreements implied by the
circumstances or by local customs.
IX. Lawyers should not mislead other persons involved in the litigation process.
A. A lawyer should not falsely hold out the possibility of settlement as a means for
adjourning discovery or delaying trial.
B. A lawyer should not ascribe a position to another counsel that counsel has not taken
or otherwise seek to create an unjustified inference based on counsel’s statements or
conduct.
18

C. In preparing written versions of agreements and court orders, a lawyer should
attempt to correctly reflect the agreement of the parties or the direction of the court.
X. Lawyers should be mindful of the need to protect the standing of the legal
profession in the eyes of the public. Accordingly, lawyers should bring the New
York State Standards of Civility to the attention of other lawyers when
appropriate.
LAWYERS’ DUTIES TO THE COURT AND COURT PERSONNEL
I. A lawyer is both an officer of the court and an advocate. As such, the lawyer
should always strive to uphold the honor and dignity of the profession, avoid
disorder and disruption in the courtroom, and maintain a respectful attitude
toward the court.
A. Lawyers should speak and write civilly and respectfully in all communications with the
court and court personnel.
B. Lawyers should use their best efforts to dissuade clients and witnesses from causing
disorder or disruption in the courtroom.
C. Lawyers should not engage in conduct intended primarily to harass or humiliate
witnesses.
D. Lawyers should be punctual and prepared for all court appearances; if delayed, the
lawyer should notify the court and counsel whenever possible.
II. Court personnel are an integral part of the justice system and should be treated
with courtesy and respect at all times.
19

JUDGES’ DUTIES TO LAWYERS, PARTIES AND WITNESSES
I. A Judge should be patient, courteous and civil to lawyers, parties and
witnesses.
A. A Judge should maintain control over the proceedings and insure that they are
conducted in a civil manner.
B. Judges should not employ hostile, demeaning or humiliating words in opinions or in
written or oral communications with lawyers, parties or witnesses
C. Judges should, to the extent consistent with the efficient conduct of litigation and
other demands on the court, be considerate of the schedules of lawyers, parties and
witnesses when scheduling hearings, meetings or conferences.
D. Judges should be punctual in convening all trials, hearings, meetings and
conferences; if delayed, they should notify counsel when possible.
E. Judges should make all reasonable efforts to decide promptly all matters presented
to them for decision.
F. Judges should use their best efforts to insure that court personnel under their
direction act civilly toward lawyers, parties and witnesses.
DUTIES OF COURT PERSONNEL TO THE COURT, LAWYERS
AND LITIGANTS
I. Court personnel should be courteous, patient and respectful while providing
prompt, efficient and helpful service to all persons having business with the
courts.
A. Court employees should respond promptly and helpfully to requests for assistance or
information.
20

B. Court employees should respect the judge’s directions concerning the procedures
and atmosphere that the judge wishes to maintain in his or her courtroom.
STATEMENT OF CLIENT’S RIGHTS
1. You are entitled to be treated with courtesy and consideration at all times by your
lawyer and the other lawyers and personnel in your lawyer’s office.
2. You are entitled to an attorney capable of handling your legal matter competently and
diligently, in accordance with the highest standards of the profession. If you are not
satisfied with how your matter is being handled, you have the right to withdraw from the
attorney-client relationship at any time (court approval may be required in some matters
and your attorney may have a claim against you for the value of services rendered to
you up to the point of discharge).
3. You are entitled to your lawyer’s independent professional judgment and undivided
loyalty uncompromised by conflicts of interest.
4. You are entitled to be charged a reasonable fee and to have your lawyer explain at
the outset how the fee will be computed and the manner and frequency of billing. You
are entitled to request and receive a written itemized bill from your attorney at
reasonable intervals. You may refuse to enter into any fee arrangement that you find
unsatisfactory.
5. You are entitled to have your questions and concerns addressed in a prompt manner
and to have your telephone calls returned promptly.
6. You are entitled to be kept informed as to the status of your matter and to request
and receive copies of papers. You are entitled to sufficient information to allow you to
participate meaningfully in the development of your matter.
7. You are entitled to have your legitimate objectives respected by your attorney,
including whether or not to settle your matter (court approval of a settlement is required
in some matters).
21

8. You have the right to privacy in your dealings with your lawyer and to have your
secrets and confidences preserved to the extent permitted by law.
9. You are entitled to have your attorney conduct himself or herself ethically in
accordance with the Code of Professional Responsibility.
10. You may not be refused representation on the basis of race, creed, color, religion,
sex, sexual orientation, age, national origin or disability.
22

McKinney's CPLR Rule 3120
1. After commencement of an action, any party may serve on any other party a notice or on any other person a
subpoena duces tecum:
(i) to produce and permit the party seeking discovery, or someone acting on his or her behalf, to inspect, copy, test or
photograph any designated documents or any things which are in the possession, custody or control of the party or
person served; or
(ii) to permit entry upon designated land or other property in the possession, custody or control of the party or person
served for the purpose of inspecting, measuring, surveying, sampling, testing, photographing or recording by motion
pictures or otherwise the property or any specifically designated object or operation thereon.
2. The notice or subpoena duces tecum shall specify the time, which shall be not less than twenty days after service
of the notice or subpoena, and the place and manner of making the inspection, copy, test or photograph, or of the
entry upon the land or other property and, in the case of an inspection, copying, testing or photographing, shall set
forth the items to be inspected, copied, tested or photographed by individual item or by category, and shall describe
each item and category with reasonable particularity.
3. The party issuing a subpoena duces tecum as provided hereinabove shall at the same time serve a copy of the
subpoena upon all other parties and, within five days of compliance therewith, in whole or in part, give to each party
notice that the items produced in response thereto are available for inspection and copying, specifying the time and
place thereof.
4. Nothing contained in this section shall be construed to change the requirement of section 2307 that a subpoena
duces tecum to be served upon a library or a department or bureau of a municipal corporation, or of the state, or an
officer thereof, requires a motion made on notice to the library, department, bureau or officer, and the adverse party,
to a justice of the supreme court or a judge of the court in which the action is triable.
23

McKinney's CPLR § 2303
(a) A subpoena requiring attendance or a subpoena duces tecum shall be served in the same manner as a
summons, except that where service of such a subpoena is made pursuant to subdivision two or four of section three
hundred eight of this chapter, the filing of proof of service shall not be required and service shall be deemed complete
upon the later of the delivering or mailing of the subpoena, if made pursuant to subdivision two of section three
hundred eight of this chapter, or upon the later of the affixing or mailing of the subpoena, if made pursuant to
subdivision four of section three hundred eight of this chapter. Any person subpoenaed shall be paid or tendered in
advance authorized traveling expenses and one day's witness fee. A copy of any subpoena duces tecum served
in a pending civil judicial proceeding shall also be served, in the manner set forth in rule twenty-one hundred
three of this chapter, on each party who has appeared in the civil judicial proceeding so that it is received by
such parties promptly after service on the witness and before the production of books, papers or other
things.
(b) A child support subpoena issued pursuant to section one hundred eleven-p of the social services law to public
utility companies and corporations, including but not limited to cable television, gas, electric, steam, and telephone
companies and corporations, as defined in section two of the public service law, may be served by regular mail, or
through an automated process where information sought is maintained in an automated data base. All other child
support subpoenas issued pursuant to section one hundred eleven-p of the social services law shall be served in
accordance with the provisions of subdivision (a) of this section.
24

MOTIONS IN LIMINE
Jeffrey K. Anderson, Esq.
Anderson, Moschetti & Taffany, PLLC
26 Century Hill Drive, Suite 206
Latham, New York 12110
(518) 785-4900
25

A. History of Use
The motion in limine is one of the single most underutilized devices for the
limiting of proof at trial, in the opinion of this practitioner. This brings us to the
question, what is the motion in limine? “Limine” is derived from the latin “…at the
threshold”. This is reflective of the fact that the motion is typically made in advance of
trial, although not always. Its fundamental purpose is to limit the introduction of
evidence on a particular issue, in whole or in part.
There are relatively few appellate cases dealing with the subject of motions in
limine. Cases appear more frequently beginning in the 1980’s and through the 1990’s,
perhaps consistent with the increasing number of civil cases generally. Or, the reason
may lie in the fact that they have been used all along, only generating appellate
questions as to their propriety and boundaries in more recent years, with the increasing
complexity of litigation (e.g., in the Frye or Daubert context involving the admissibility
of scientific evidence).
Since the United States Supreme Court decided Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (June 28, 1993), motions in limine
to prevent an adversary’s expert from testifying to a scientific opinion had been on the
rise, initially in federal courts and thereafter in state courts, following the Daubert
reasoning. In New York, Daubert “type” motions have been brought more frequently
under the guise that the expert’s opinion fails to meet the accepted New York standard
under Frye v. U.S., 293 F. 1013 (1923), on the basis that the opinion is not consistent
with commonly accepted scientific principles. Examples of the variety of cases in
which expert testimony has been challenged in recent years in New York include use of
spinoscopy (Castrichini v. Rivera, 175 Misc. 2d 530 [Sup. Ct., Monroe Co. 1997]),
validity of hypnotically-enhanced testimony (Bennett v. Saeger Hotels, Inc., 209 A.D.2d
946 [4th
Dep’t. 1994]), expertise of a rape trauma specialist (Gutierrez v. Iulo, 156 Misc.
2d 79 [Sup. Ct., N.Y. Co., 1992]), as well as “garden variety” negligence actions,
products liability cases, medical malpractice cases and securities litigation.
Procedurally, the motion in limine addressed to scientific evidence should be
supported by material of a “scientific nature”, having “evidentiary value”, as the court
will not “undertake an independent review of scientific literature” (see Drago v.
Tishman Construction Corporation of New York, 4 Misc. 3d
354 [Sup. Ct., N.Y. Co.,
2004]).
The motion is a useful mechanism and provides flexibility in that it can result in
a complete preclusion of the expert’s proposed testimony and opinions, or alternatively,
let the parties know that the expert will be allowed to testify fully as to his opinions; or,
to establish parameters for the foundation materials he or she may base his opinions
upon, or, to otherwise limit the scope of his or her testimony in some manner (see
27

Hornbrook v. Peak Resorts, Inc., 194 Misc. 2d 273 [Sup. Ct., Tompkins Co., 2002];
Mariano v. Schuylerville Cen. Sch. Dist., 309 A.D. 2d 1116 [3d Dep’t. 2003]).
The motion can be made by either party and there is no limitation as to the
particular type of evidence that can be the subject of the motion. While inherently the
introduction of most evidence is “prejudicial” to the adversary, the motion in limine
seeks preclusion of introduction of irrelevant, extraneous, collateral or otherwise
inflammatory evidence.
One of the benefits of bringing the motion is that if the trial judge rules that the
evidence, or some part of it, will be inadmissible, the trial may be shortened or
simplified. Sometimes the motion is used to preclude or eliminate evidence on an issue
that is generally not in dispute or limit proof to one issue, where other theories that were
alleged during the pre-trial stage are not supportable by competent proof.
A major advantage of the motion, when brought sufficiently in advance of trial,
is that it affords the trial judge the opportunity to carefully consider the arguments from
both sides in a deliberate and unrushed manner, thus avoiding the need for the judge to
make an immediate ruling in the “heat of the battle” during trial. This reduces the
potential for judicial error.
When the motion is made in advance of jury selection and the judge makes
her/his ruling, an important advantage is obtained in that the attorneys can question the
prospective jurors knowing that certain evidence will not come out at trial, or
alternatively, will.
Further, a ruling by the judge prior to trial also provides the important
opportunity to counsel for both sides to prepare all of their proof with the knowledge
that particular evidence either will, or will not, be a part of the case.
From the standpoint of credibility of the attorney who seeks to have evidence
excluded, a favorable ruling by the trial judge may help to enhance the standing of the
attorney with the jury. Without the ruling, the jurors will hear some mention of
evidence that may be highly prejudicial or inflammatory. The attorney then objects and
the jury may conclude that counsel is attempting to “hide the truth” from them.
At the same time, the attorney who desires to make the motion should not make
it prematurely. The evidentiary issues should be fully framed. If there is evidence not
available by affidavit, deposition or other competent evidence available for inclusion in
the motion before trial, the judge may well deny it, granting leave to renew it during the
trial. Case law is clear that this right is available (Van Guilder v. Town of Fallsburgh,
25 A.D. 2d 338 [3d Dep’t. 1966]; Speed v. Avis Rent-A-Car, 172 A.D. 2d 267 [1st
Dep’t. 1991]). The risk of this is that the moving attorney has “tipped his hand” and the
28

adversary now has a better opportunity to oppose the application during trial, or
circumvent the issue entirely by properly framing his or her proof. Examples of
evidentiary issues where motions in limine have been used, or may be used, are as
follows:
- to exclude the history portion of a hospital record (Passino v. DeRosa, 199
A.D. 2d 1017 [4th
Dep’t. 1993]);
- to bar a party from submitting proof relating to a new liability theory
(Barksdale v. N.Y. City Transit Auth., 294 A.D. 2d 210 [1st
Dep’t. 2002]);
- to preclude testimony concerning wage loss by an illegal alien (Sanango
v. 200 E. 16th
St. Hous. Corp., 15 A.D. 3d 36 [1st
Dep’t. 2004]);
- to preclude the admission of a surveillance video (Hairston v. Metro-
North Commuter R.R., 6 Misc. 3d 399 [Sup. Ct., N.Y. Co., 2004]);
- to limit proof at trial concerning settlements (Pellegrino v. New York City
Transit Authority, 141 A.D. 2d 709;
- to limit proof at trial concerning prior similar acts of malpractice
(Cotgreave v. Public Administrator of Imperial County, 91 A.D. 2d 600);
- to limit proof at trial concerning damages (Mauro v. Freeport, 113 A.D.
2d 876);
Tactically, motions in limine can help to accomplish a number of objectives:
- to prevent proof about an issue damaging to your case and to thereby
promote settlement of the claim before trial;
- as a discovery device to force production by your adversary of evidence to
be offered at trial;
- to sharpen and focus the issues;
- to narrow the scope of proof to be offered at trial, thereby “streamlining”
the process.
29

With respect to how the motion is made, there is no statutory basis either under
New York state law, or in federal practice, for bringing the motion. It can be made
orally or in writing (Wilkinson v. British Airways, 292 A.D. 2d 263 [1st
Dep’t. 2002]),
but this practitioner highly recommends that the motion be made in writing, for a
number of reasons. First, your arguments, the issues and case law can be set forth in an
articulate, well-documented manner that will enable the judge and his or her clerk to
properly consider the matter. Second, you create a record, should the case be appealed
after trial. Third, putting the motion in writing enables you to make the motion in
advance of trial (perhaps a week or two), increasing the probability that you will have a
decision before trial, thereby enabling better preparation of your case.
Bear in mind that if the motion is made in the course of regular pre-trial motion
practice the time requirements set forth in CPLR 2214 must be followed. However, this
is ordinarily not when the motion is made, for a number of reasons. First, in the IAS
system, it is quite possible that the judge assigned to the case prior to trial may not be
the judge before whom it will be tried. The judge assigned prior to trial may be
reluctant to rule on the motion, although tactically, if you believe that he would rule in
your favor, you may want to put the motion before him and hope that he is willing to
make a ruling.
With respect to the form of a motion in limine, there is no prescribed form,
either in state or federal practice in New York. This practitioner’s recommendation is
that there be a title page “Motion(s) in Limine”, with the caption of the action, followed
by separately numbered or designated issues that are the subject of the motion, as well
as attached exhibits, if any; followed by a separate memorandum of law, corresponding
in its sections to the body of the motion.
B. State Court
As previously described, the use of the motion in limine is probably an
underutilized tool historically, although its use, particularly regarding the admission of
scientific testimony, has increased in the “Daubert” era. In one recent criminal case, the
Court of Appeals criticized defense counsel for failing to use the device (People v.
Rodriguez, 3 M.Y. 3d 462 [2004]).
The practitioner should become familiar with the rules of each supreme court
justice, in addition to the rules of each judicial district within which the court is located.
Motions in limine are dealt with by some justices, and not others, and in some districts,
and not others.
For example, in the 3rd
Judicial District, which includes Albany, Columbia,
Greene, Rensselaer, Schoharie, Sullivan and Ulster counties, the district-wide rule
regarding motions in limine is that they must be made in writing and “…be prepared
30

and filed at the earliest possible time to the extent that the basis for these motions are
know by a party and will arise during trial of the action.” Looking to the rules of
individual justices within the 3rd
District, those of Judge Teresi require that “any
motions in limine should be in writing, timely served on all counsel a reasonable time
before trial”, while rules of other individual justices within the same district either
specifically defer to the district-wide rule, or are silent, thereby deferring to the district
rule.
However, if the motion involves an expert response served on behalf of a party,
the rule is different. There, the district-wide rule states that:
“Any motion by a party to preclude, or limit expert testimony under the
rule, must be made as soon practicable but no later than forty-five (45)
days after the party’s receipt of the expert disclosure or the motion will be
waived.”
Thus, at least with respect to expert disclosure, the rule provides a very limited
window of time within which to object to your adversary’s disclosure.
In the 4th
Judicial District, which includes Clinton, Essex, Franklin, Fulton,
Hamilton, Montgomery, St. Lawrence, Saratoga, Schenectady, Warren and Washington
counties, there is no district-wide rule specifically addressing motions in limine. The
justices do address motion practice, but presumably this would apply to a motion in
limine only if made during the timeframe encompassed by pre-trial discovery
proceedings, thereby invoking CPLR 2214 and its timing requirements. However, it is
certainly possible that an individual justice will issue to the attorneys his or her
individual rules with respect to trial practice. The practitioner should make such an
inquiry at the pre-trial conference.
C. Federal Court
The United States Supreme Court has held that judicial authority for the motion
in limine arises from the trial court’s “…inherent authority to manage the course of
trials” (Luce v. United States, 469 U.S. 38 [1984]).
As with New York state courts, there is no express statutory mechanism within
the Federal Rules of Evidence with respect to motions in limine. However, there are a
number of rules that come into play on the issue.
31

FRE 103(c) states that:
“In jury cases, proceedings shall be conducted, to the extent practicable,
so as to prevent inadmissible evidence from being suggested to the jury by
any means, such as making statements or offers of proof or asking
questions in the hearing of the jury.”
The Advisory Committee Note to the 2000 Amendment indicates that the rule
encompasses rulings on evidence both before and during trial, including motion in
limine rulings. The note describes one of the difficult issues arising from an in limine
or other evidentiary ruling, which is whether the losing party must renew an objection
or offer proof when the evidence is or would have been offered at trial, in order to
preserve a claim of error on appeal. The Second Circuit addressed this issue in United
States v. Valenti, 60 F.3d 941 [1995], where the Court held that the failure to proffer
evidence at trial waives any claim of error where the trial judge had indicated that he
would reserve judgment on the in limine motion until he had heard the trial evidence.
The note also indicates that even where the court’s ruling is “definitive”, nothing
prohibits the court from revisiting its prior decision when the evidence is offered or
attempted to be offered at trial.
Other rules that apply to the motion in limine, from a substantive standpoint,
include FRE 402, which essentially states that all relevant is admissible, while evidence
not relevant is not admissible, and FRE 403, which essentially states that even relevant
evidence may be excluded if “…its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.”
Finally, with respect to the types of issues that may be raised on a motion in
limine in federal court, they are the same as in New York state court. Evidence that the
adversary believes, in good faith, would unfairly prejudice his client, is irrelevant,
relevant but outweighed by its prejudicial impact (FRE 403) or which would otherwise
not be admissible (e.g., privileged, eliminated by pre-trial ruling, is beyond the scope of
the parties defined claims or allegations, etc.) may be the subject of a motion in limine.
For example, FRE 404(b) deals with the admissibility of “other crimes, wrongs or acts”.
It defines the limited parameters under which such evidence may be used in both
criminal and civil cases. Certainly, a carefully prepared motion in limine would help to
prevent evidence involving an event or offense in a party’s past being heard by the jury,
where its presentation would only serve to unfairly prejudice the individual or his cause.
32

With respect to the timing of the motion in limine in federal court, the Uniform
Pre-Trial Scheduling Order, issued in each case, addresses this. For example, in one
recently issued by Judge McCurn in the Northern District, the Order required that:
“One week before the trial ready date counsel shall file with the Clerk’s
Office in duplicate, with a copy to opposing counsel, a letter brief
containing a concise statement of any and all evidentiary issues to be
presented upon trial, citing the applicable rules of evidence and case law.”
Further, to the extent there is an objection that might otherwise be the subject of
a motion in limine with respect to the use of proposed deposition testimony designated
by another party, or objection to the admissibility of an exhibit described in the initial
disclosures, the scheduling order speaks to this separately. For example, in Judge
McCurn’s Order, a list of the objections must be filed and served within 14 days after
service of the Rule 26(a)(3) initial pre-trial disclosures.
33

PENNOCK, BREEDLOVE & NOLL, LLP
ATTORNEYS AT LAW

1407 RT. 9, Nine North
Building 4, 2nd
Floor
Clifton Park, New York 12065
John H. Pennock, Jr. Tel (518) 383-9400
Brian H. Breedlove Fax (518) 383-1959
Carrie McLoughlin Noll
Tracy M. Larocque
Sara E. Paupini
FOUNDATIONS
Respectfully submitted
BRIAN H. BREEDLOVE, ESQ.
35

FOUNDATION ISSUES
Informal judicial admissions. Are a much overlooked source of admissible evidence.
( the rule is: watch what you say as your words may come back to haunt you.) Taking a
position at a deposition or at trial on the record might just bind you to something you
might regret. See, De Vito vs. Katsch, 157 A.D.2d 413 (2nd
Dept. 1990). People vs.
Rivera, 58 A.D. 2d 147 (1st
Dept., 1977); DiCamillo v. City of New York, 245 A.D. 2d
332 (2nd
Dept., 1997); Payne v. New Hyde Park Dodge, 163 A.D. 2d 285 (2nd
Dept.,
1990); Bellino v. Bellino Construction Company, 75 A.D. 2d 630 (2nd
Dept., 1980).
Video tape surveillance: simple photo graphic foundation will do. Fair and accurate
representation of the matters depicted therein at the relevant time.
Edit : it is smart to edit the film down to those small sections you want the jury to see;
Put the investigator on to testify that tape is the original; when it was taken; where;
complete tape and a fair and accurate representation; offer the complete tape; Now give
the second edited version to the witness and ask if he reviewed it recently; and if it is a
fair and accurate edited version of the tape for the short segments shown therein; offer it;
stating in the presence of the jury if possible that you are offering the edited version in
the interest of judicial economy in order to shorten the time the jury will have to spend
looking at the tape; if you have an objection on the basis that it is edited respond by
indicating the entire tape is in evidence and your adversary can certainly show any
addition portions or the whole tape to the jury. I have never failed to get it in this way
and more than one adversary looked bad for raising the objection and insisting the jury
be forced to watch it all.
Business records foundation
Records made in the regular course of business are hearsay when offered for the truth of
their contents.
CPLR § 4518(a) creates in New York a business records exception to the hearsay rule.
The rule was amended by the State legislature in 2002 to include "tangible evidence" of
an electronic record stored in the ordinary course of business as a "true and accurate"
representation of the electronic record (CPLR § 4518(a)).
37

The courts themselves have liberally construed the application of this exception to
hearsay. (See, People v. Etienne 192 Misc.2d 90, 745 N.Y.S.2d 867; People v.
Markowitz 187 Misc.2d 266, 269, 721 N.Y.S.2d 758.)
Nonetheless, the decisions have held fast to three foundation requirements:
"first, the record must be made in the regular course of business--reflecting a routine,
regularly conducted business activity, needed and relied on in the performance of the
functions of the business. Second, it must be the regular course of business to make the
record--in other words, the record was made pursuant to established procedures for the
routine, habitual, systematic making of such a record. Finally, the record must have been
made at the time of the act, transaction, occurrence or event, or within a reasonable time
thereafter, assuring that the recollection is fairly accurate and the entries routinely made."
86 N.Y.2d 81, at 89, 629 N.Y.S.2d 992,
Naturally, in most instances, the proponent of business records can lay the foundation
for admission into evidence its own business record, as it should have knowledge that the
document was made in the regular course of its business and the record keeping practices
of the business. However, the general rule precludes the admission of a writing made by
another business entity because "such papers are not made in the regular course of
business of the recipient, who is in no position to provide the necessary foundation
testimony as to the regularity and timeliness of their preparation or source of information
contained in the records." Alexander, Practice Commentaries,McKinney's Cons.Laws of
NY, Book 7B, CPLR 4518:1 at 105.
However, the business record exception has expanded to permit the recipient to lay the
foundation given "the relationship between the two entities and the nature of the records
in question, including the circumstances of their preparation...." (Alexander, Practice
Commentaries, McKinney's Cons.Law of NY, Book 7B, Cumulative Pocket Part 2003,
4581:1 at 36).
38

Given the nature of modern transactions, a proponent of the hearsay exception hopes to
be able to provide the proper foundation for a document not made in the regular course
of its business, but created by another entity and yet retained in its file. Nonetheless "the
mere filing of papers received from other entities, even if they are retained in the regular
course of business, is insufficient to qualify the documents as business records (see
Burgess v. Leon's Auto Collision, 87 Misc.2d 351, 385 N.Y.S.2d 470, aff'd 91 Misc.2d
128, 397 N.Y.S.2d 358)" (Standard Textile Company, Inc.-v-National Equipment
Rental, Ltd. 80 A.D.2d 911, 437 N.Y.S.2d 398, wherein Plaintiff's employee had not the
requisite knowledge of defendant's record keeping).
The assurance that the documents sought to be admitted are reliable and trustworthy lay
at the heart of this exception. (See Air Land Forwarders, Inc., et al, 172 F.3d 1338;
Munoz v. Strahm Farms, Inc., 69 F.3d 501). In People v. DiSalvo, 284 A.D.2d 547,
727 N.Y.S.2d 146, the Appellate Division held that a prosecution witness could lay a
proper
RODRIGUEZ v.TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, 276
A.D.2d 769, 716 N.Y.S.2d 24, 2000 N.Y. Slip Op. 09398 ( Second dept. Oct. 30, 2000.)
The Legislative history shows that CPLR 4518(a), which sets forth the foundational
elements for the admission of business records, was amplified by the Legislature to
include CPLR 4518(c) for remedial purposes. Pursuant to CPLR 4518(a), a record is
admissible as a business record upon a showing that (1) it was made in the regular
course of business, (2) it was the regular course of the business to make such a
record, (3) it was made by someone who had the obligation to make the record in
the regular course of business and who had actual knowledge of the event recorded
or had received the information from someone within the business who had actual
knowledge and was under a business duty to report the event to the maker of the
record, and (4) the record was made at the time the transaction or event occurred.
Hospital records
CPLR 4518(c) provides that a hospital record that bears a certification setting
forth the foundational requirements of CPLR 4518(a) is admissible into evidence as
prima facie evidence of the facts contained therein, without requiring the proponent
to establish the foundational elements for the admission of business records through
oral in-court testimony. While CPLR 4518(c) dispenses with in-court foundational oral
testimony required by CPLR 4518(a), legislative history and case law indicate that the
prima facie element of CPLR 4518(c) is not one that must be accepted without question.
In its 1958 report to the Legislature, the Advisory Committee on Practice and Procedure
stated, "As used, the term ['prima facie'] means a presumption which shifts the burden of
coming forward and not the burden of persuasion. It is rebutted when evidence contrary
to the presumed fact sufficient to support a finding of its negative has been introduced"
39

SEE NEW SECTION 3122-A added in September 2003; to dispense with the need
to call a foundation witness;
McKinney's CPLR Rule 3122-a
(a) Business records produced pursuant to a subpoena duces tecum under rule 3120 shall
be accompanied by a certification, sworn in the form of an affidavit and subscribed
by the custodian or other qualified witness charged with responsibility of maintaining
the records, stating in substance each of the following:
1. The affiant is the duly authorized custodian or other qualified witness and has
authority to make the certification;
2. To the best of the affiant's knowledge, after reasonable inquiry, the records or
copies thereof are accurate versions of the documents described in the subpoena
duces tecum that are in the possession, custody, or control of the person receiving
the subpoena;
3. To the best of the affiant's knowledge, after reasonable inquiry, the records or
copies produced represent all the documents described in the subpoena duces
tecum, or if they do not represent a complete set of the documents subpoenaed, an
explanation of which documents are missing and a reason for their absence is
provided; and
4. The records or copies produced were made by the personnel or staff of the
business, or persons acting under their control, in the regular course of business,
at the time of the act, transaction, occurrence or event recorded therein, or within
a reasonable time thereafter, and that it was the regular course of business to make
such records.
40

(b) A certification made in compliance with subdivision (a) is admissible as to the matters
set forth therein and as to such matters shall be presumed true. When more than one
person has knowledge of the facts, more than one certification may be made.
(c) A party intending to offer at a trial or hearing business records authenticated by
certification subscribed pursuant to this rule shall, at least thirty days before the
trial or hearing, give notice of such intent and specify the place where such records
may be inspected at reasonable times. No later than ten days before the trial or
hearing, a party upon whom such notice is served may object to the offer of business
records by certification stating the grounds for the objection. Such objection may be
asserted in any instance and shall not be subject to imposition of any penalty or
sanction. Unless objection is made pursuant to this subdivision, or is made at trial
based upon evidence which could not have been discovered by the exercise of due
diligence prior to the time for objection otherwise required by this subdivision,
business records certified in accordance with this rule shall be deemed to have
satisfied the requirements of subdivision (a) of rule 4518. Notwithstanding the
issuance of such notice or objection to same, a party may subpoena the custodian to
appear and testify and require the production of original business records at the
trial or hearing.
New rule on the service of subpoenas duces tecum; prevents previous common
unethical practice of seeking records subject to privilege. What if any sanction if
the subpoena is not served appropriately on adverse parties?
McKinney's CPLR § 2303
(a) [Eff. Jan. 1, 2004. ] A subpoena requiring attendance or a subpoena duces tecum shall
be served in the same manner as a summons, except that where service of such a
subpoena is made pursuant to subdivision two or four of section three hundred eight of
this chapter, the filing of proof of service shall not be required and service shall be
deemed complete upon the later of the delivering or mailing of the subpoena, if made
pursuant to subdivision two of section three hundred eight of this chapter, or upon the
later of the affixing or mailing of the subpoena, if made pursuant to subdivision four of
section three hundred eight of this chapter. Any person subpoenaed shall be paid or
tendered in advance authorized traveling expenses and one day's witness fee. A copy of
any subpoena duces tecum served in a pending action shall also be served, in the
manner set forth in rule twenty-one hundred three of this chapter, on each party
who has appeared in the action so that it is received by such parties promptly after
service on the witness and before the production of books, papers or other things.
41

Investigative reports under federal law admitted under FRE 803(8)(c) ( See; Beech
Aircraft v Rainey, 488 U. S. 153; public records exception certification provides
manner of foundation in New York but not the basis for admission but See:
Kozlowski v. City of Amsterdam 111 A.D.2d 476, 488 N.Y.S.2d 862 (Third Dept 1985)
Plaintiff sought to admit into evidence a report prepared by the Medical Review
Commission of the State Commission of Corrections pursuant to Correction Law § 47 (1)
(a), (d) concerning decedent's death. Trial court refused and the third dept reversed. Court
stated “In its report, the Medical Review Commission concluded that a violation of 9
NYCRR 7504.1 had occurred in that defendant failed to maintain constant supervision of
decedent after placing him in a cell in view of his intoxication and expressions of suicidal
ideation. Since the report was prepared pursuant to statutory mandate, it was at the very
least admissible under the public documents common-law exception to the hearsay rule
(see, Sklar, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR
C4520, p 480; Richardson, Evidence §§ 342, 346, at 308-309, 313 [Prince 10th ed]).
Contrary to defendant's contention that admission of the report would serve to preempt
the jury's function, a violation of an administrative rule is simply some evidence of
negligence which a jury is free to disregard even where the adverse party offers no
evidence on the point (see, Conte v. Large Scale Dev. Corp., 10 NY2d 20, 29; 41 NY Jur,
Negligence, § 43). Since the report was properly prepared and clearly relevant, plaintiff
had a right to have it admitted into evidence (see, Wolfe v. Samaritan Hosp., 104 AD2d
143, 146; Rolnick v. 25th Ave. Bldg. Corp., 27 AD2d 844). Additionally, two
memoranda of the Commission of Corrections certified by counsel to said Commission,
concerning the standard of care for intoxicated prisoners, were also improperly excluded.
These documents, which were included by reference in the Medical Review
Commission's report, were admissible under the business records exception to the
hearsay rule (CPLR 4518) and relevant to the issue of whether defendant was negligent in
its care of decedent. In view of the close question of negligence presented in this case, we
conclude that the failure to admit these materials constitutes prejudicial error warranting a
new trial (CPLR 2002; Wolfe v. Samaritan Hosp., supra.; see, 2A Weinstein-Korn-
Miller, NY Civ Prac ¶ 2002.02).” Id. At 478.
DEMONSTRATIVE EVIDENCE: Illustrates of demonstrates a witness’ testimony
with regard to the subject matter of his testimony. Accident, medical issue, how a
machine works charts, diagrams, skeletons, medical art, computer simulations, etc. must
be relevant; and will serve to assist the jury in understanding the witnesses testimony
without being unduly prejudicial. Beware the content!!!!!!! Limit the material to that
which is necessary to demonstrate or clarify the testimony. Object to that which simply
bolsters or repeats the testimony. As the opponent of the evidence make sure the court
rules that it is admitted for demonstrative purposes only as it should not go to the jury
room. If it goes to the jury they will put undue emphasis on it and will not have the
benefit of the explanation that should go with it. Court has discretion to allow jury to
take the exhibit to the jury room. CPL & 310.20(1) and see: Uss v Town of Oyster Bay,
37 N.Y. 2d 639.
42

Demonstrations and experiments: In the discretion of the trial judge. A foundation of
sufficient “ similarity” must be laid. The conditions of the experiment or demonstration
must be substantially similar to the actual events. It is dangerous to do this in the
presence of the jury. Has anyone forgotten the “Glove”.
Computer simulations: Re-enactment v. a representation of an expert’s opinion at
the occurrence.
Foundation includes:
1. the computer generated graphic is relevant;
2. the graphic representation fairly and accurately demonstrates the opinion
of the expert that is offering it; and ,
3. The graphic will aid the jury in understanding the experts testimony.
See: People v McHugh, 124 Misc. 2d 559; Feastor v New York City Transit
Authority, 172 A. D. 2d 284 ( First Dep’t, 1991) and See: People v Yates, 290 A.D. 2d
888 ( 3rd
Dep’t 2002) Shaken baby syndrome case. Court instructs carefully on use by
jury of the simulation as not purporting to show what actually happened( NOT A
REENACTMENT). Danger is clear in that it is unduly prejudicial and you should fight
to keep it out.
Experts: an expert opinion can be based upon hearsay when he relies upon material of
out of court origin if it is the kind accepted in the profession as reliable in forming a
professional opinion. Borden v Brady, 92 A.D. 2d 983; Fed and State rules are the
same. Ask the expert if this is the type of information relied upon in the profession in
forming opinions.
43

Scientific And Expert
Evidence In State And
Federal Courts
Prepared and Presented by:
Mark J. McCarthy
Harris Beach PLLC
45

PRACTICAL HEARSAY
©2006 – John T. Wilkins
Wilkins & Griffin, PLLC
2461 Main Street
Lake Placid, NY 12946
(518) 523‐1409
55

I.  WHAT IS (AND WHAT IS NOT) HEARSAY

1.  Hearsay defined.  Hearsay is an out‐of‐court statement offered to prove the truth of the fact
asserted in the statement.

2.  Corollary to the Rule
Where an out‐of‐court statement is being offered not to prove the truth of its content, but rather
to prove that the statement itself was made, that is not hearsay. This is oftentimes found where
the issue is the state of mind of the person making the statement, or the   statement itself is an
issue.

(A)  State of Mind
By way of example, where a particular act of a declarant is at issue, the
declarant’s statement of a future intention to perform that act is admissible as
proof of the declarant’s intent on that issue and is inferential proof that the
declarant carried out his intent. People v. D’arton, 289 A.D.2d 711, 734 N.Y.S.2d
309 (3d Dep’t 2001).

(B)  Statement in Issue – Examples
Defamation action where issue is defendant’s utterance of defamatory
comments; Existence of oral contract where the contract itself cannot be proved
absent testimony concerning the statements made by the parties to the
agreement; §4506 of the CPLR that allows the use of unlawfully obtained
eavesdropping evidence in any civil or criminal trial, hearing or proceeding
against a person who has or is alleged to have committed the crime of
eavesdropping.

             (C) Res Gestae (verbal acts)

People v. Sostre, 70 A.D.2d 40, 418 N.Y.S.2d 662 (2d Dep’t 1979). Use of utterance as
verbal acts has four limitations: conduct to be characterized by words must be material
to issue; conduct must be equivocal in its nature; words must aid in giving legal
significance to conduct; and words must accompany conduct.

It has been defined, Inter alia, as an utterance which accompanies an act or conduct to
which it is desired to give a legal effect (cf. Keefe v. State, 50 Ariz. 293, 72 P.2d 425; 22A
C.J.S. Criminal Law s 662(2)). Verbal acts are themselves part of the transaction which
they illustrate, explain or interpret (People v. Willson, 401 Ill. 68, 81 N.E.2d 485). The use
of utterances as verbal acts has four limitations: (1) the conduct to be characterized by
the words must be material to the issue; (2) the conduct must be equivocal in its nature;
(3) the words must aid in giving legal significance to the conduct; and (4) the words
must accompany the conduct (Keefe v. State, supra ; 6 Wigmore, Evidence
57

(Chadbourn Rev.), s 1772).

(D)  Rule 4514. Impeachment of witness by prior inconsistent statement

In addition to impeachment in the manner permitted by common law, any party may
introduce proof that any witness has made a prior statement inconsistent with his
testimony if the statement was made in a writing subscribed by him or was made under
oath.

3. Hearsay can take the form of more than the spoken word.
(A)  Hearsay by Silence

People v. Harold, 125 A.D.2d 491, 509 N.Y. Sup. 2d 409 (2d Dep’t 1986). Declarations or
statements made in the presence of a party are only competent evidence when the
person effected hears and fully comprehends the effect of the words spoken and when
he is at full liberty to make answer thereto and only under such circumstances  as would
justify  the inference of ascent or acquiescence as to the truth of the statements  by his
remaining silent. Statements that are of such a nature that there would be no reason for
the defendant necessarily to reply to them do not constitute admission by  silence.

People v. Frias, 250 A.D.2d 495, 673 N.Y.S.2d 416 (1d Dep’t 1998). Defendant who heard
another person’s statement accusing him of a crime, understood its implication and
remained silent although he was free to answer notwithstanding defendant’s contention
that his silence was due to fear of the person who made the statement properly
admissible as admission by silence exception to the hearsay rule.

People v. Goldston, 6 A.D.3d 736, 776 N.Y.S.2d 102 (3d Dep’t 2004). Where a defendant
invokes his or her constitutional right against self incrimination, the People may not use
his or her silence against him or her on their direct case. This principal not only applies
where a defendant refuses to answer any questions, but also to situations where a
defendant responds to questioning, but declines to answer selective questions.

(B) Conduct as Hearsay

Non‐verbal acts intended as an expressive communication are inadmissible. Non‐
assertive acts are considered circumstantial evidence and are governed by rules
applicable to circumstantial evidence

Examples: pointing, sign language. Compare: umbrellas


58

II.  EXCEPTIONS TO THE HEARSAY RULE

Exceptions to the hearsay rule can be found in both the CPLR and common law. CPLR §4543
makes clear that CPLR Article 45 does not exclude proof of a fact or writing by any method
authorized by any applicable statute or by the rules of evidence at common law.

1.  Common Law Exceptions to the Rule

(A)  Admissions. “An admission is an act or declaration of a party, or his  representative or
predecessor in interest, which constitutes evidence against the party at trial. As a general rule,
any declaration or conduct of a party which is inconsistent with his position on trial may be
given in evidence against him as an admission.” Richardson on Evidence, 10th Edition.

(1)  Admissions may be judicial or extrajudicial. Judicial admissions may be
either  formal judicial admissions or informal judicial admissions.

a) Formal Judicial Admissions are conclusive.
                1)stipulated facts
                                        2)response to CPLR §3123 Notice to Admit (only in the action then
pending)
                                        3) Facts formally admitted in Court (guilty plea)
                                        4) Facts admitted in the pleadings


b) Informal judicial admissions constitutes evidence, but are non‐
conclusive.

                              1) deposition testimony
                                      2) testimony at trial of the present action
                                     3) Affidavits
             4) Formal judicial admissions made in another proceeding
                                        5) party’s testimony or pleadings in a different matter

Knutson v. Sand, 282 A.D.2d 42, 725 N.Y.S.2d 350 (2d Dep’t 2001). [T]he
statement by the defendant‐oral surgeon made under oath during trial that he
was not supposed to intrude into the inferior alveolar canal of the mandibular
bone constitutes a judicial admission. A partyʹs statement, made during
testimony at a trial, which is adverse to his   or her contention and is
uncontradicted by other witnessesʹ testimony, constitutes a judicial admission
(see, **356 Matter of Union Indem. Ins. Co. of N.Y., 89 N.Y.2d 94, 103, 651 N.Y.S.2d
383, 674 N.E.2d 313; see generally, Skelka v. Metropolitan Tr. Auth., 76 A.D.2d
492, 430 N.Y.S.2d 840). Although such an admission is not conclusive, it is
59

evidence of facts which bear upon the ultimate issue to be resolved (seMatter of
Union Indem. Ins. Co. of N.Y., supra, at 103, 651 N.Y.S.2d 383, 674 N.E.2d 313).

CRAMER v. KUHNS, 213 A.D.2d 131, 630 N.Y.S.2d 128 (3d Dep’t 1995)
We are also of the view that Supreme Court erred in excluding a notice of claim
filed by plaintiff in a Court of Claims action arising out of the same incident. In
that claim, plaintiff asserted that the accident was caused by the motorcycle being
"thrown out of control when the kickstand struck a defective piece of roadway".
We previously have held that a complaint filed in one lawsuit is admissible against
the same party in another lawsuit as an informal judicial admission and that
exclusion of such evidence constitutes reversible error (see, Carter v. Kozareski,
39 A.D.2d 703, 704, 331 N.Y.S.2d 875, appeal dismissed 31 N.Y.2d 779, 339
N.Y.S.2d 106, 291 N.E.2d 386).

c)  Extrajudicial admissions
All admissions that are not judicial admissions are extrajudicial admissions. Such
admissions may be made directly by statement, by conduct, or by silence.

Gangi v. Fradus, 227 N.Y. 452, 125 N.E. 677 (1920). In a civil action, statements
made out of court or of judicial proceeding or record, or, as they are
denominated, extrajudicial admissions, by a party to the action, adverse to his
claim, are evidence against him that the facts they state are true. Koester v.
Rochester Candy Works, 194 N. Y. 92, 87 N.  E. 77, 19 L. R. A. (N. S.) 783, 16 Ann.
Cas. 589.

d) Admission must be against the declarant’s  interests
Knesz v. Singman, 37 A.D325 N.Y.S.2d 885.2d 1026 (3d Dep’t 1971). The
testimony of the appellant Hope and of the respondent Singman establishes that
during the two hours preceding the accident, Singman had had at most four
glasses of beer. The appellant Hope also admitted in cross examination that she
had told her prior attorney that Singman ʹoperated his vehicle while his ability
operate the same was impairedʹ. Since the appellants had the burden of proving
that Hope was free of contributory negligence and since accepting a ride in an
automobile known to be operated by an intoxicated person is either an
assumption of risk or contributory negligence, the testimony of the appellant
Hope was in the nature of an admission against interest.

Dlgosz v. Exchange Mutual Insurance Company, 176 A.D.2d 1011, 574 N.Y.S.2d
864 (3d Dep’t 1991). Plaintiff contends that the examination under oath of
plaintiff and her husband were erroneously received in evidence. We disagree.
Plaintiffʹs and her husbandʹs transcripts were admissible both as statements of a
party to the lawsuit and as extrajudicial admissions of a party (see, Richardson,
60

Evidence §§209, 210, at 187 [Prince 10th ed.] ). The husband was an extra insured
under the policy. Plaintiffʹs and her husbandʹs examinations contained
inconsistent statements and were, therefore, admissible as evidence (see, Hayes v.
Henault, 131 A.D.2d 930, 932‐933, 516 N.Y.S.2d 798).
e) Admissions made by agents of a party

Loschiavo v. Port Authority of New York,  58 N.Y.2d 1040, 448 N.E.2d 1351, 462
N.Y.S.2d 440 (1983). [T]he hearsay statement of an agent is admissible against his
employer under the admissions exception to the hearsay rule only if the making
of the statement is an  activity within the scope of his authority.

Candela v. City of New York,  778 N.Y.S.2d 31, 2004 N.Y. Slip Op. 04760
(1st Dep’t, 2004). On appeal, plaintiff argues that Badinskyʹs statements should
have been admitted under the speaking agent hearsay exception and that such
statements, once admitted, were sufficient to raise a triable issue of fact as to
defendantsʹ actual notice of the defective window condition. We agree.

Our precedents support the conclusion that the breadth of Badinskyʹs authority
was sufficient to bind his principals to his  admissions. For instance, in Browne v.
Prime Contracting Design Corp., 308 A.D.2d 372, 764 N.Y.S.2d 269, lv. denied 2
N.Y.3d 702, ‐‐‐ N.Y.S.2d ‐‐‐‐, ‐‐‐ N.E.2d ‐‐‐‐, 2004 N.Y. LEXIS 549, we held that the
hearsay statements of the defendant‐contractorʹs ʺfield supervisorʺ regarding his
knowledge of the hazardous condition of a parapet wall were admissible against
the contractor under the ʺspeaking agentʺ exception to the hearsay rule.
Similarly, in  Navedo v. 250 Willis Avenue Supermarket, 290 A.D.2d 246, 247, 735
N.Y.S.2d 132, we reversed the trial courtʹs holding that a post‐accident statement
by a store manager acknowledging that he had instructed an employee to clean a
puddle in the store ʺawhile agoʺ was inadmissible hearsay. In ruling that the
evidence should have been admitted against the defendant store on the issue of
notice, we stated that ʺ[a] [store] manager has the authority to bind its employer
by an admission made as agent on behalf of the employerʺ (id.). The record
demonstrates that Badinsky possessed broad authority to act on behalf of
defendants. Although TDX was originally hired as a consultant to the project,
delays on the project necessitated that TDX, and more particularly Badinsky, take
on an increased role. Indeed, prior to the accident, Badinsky had become the
ʺproject managerʺ for the site, with equal responsibility with the general
contractor, and was given general supervisory responsibility over all of the
trades and work done by the subcontractors. In addition, after the accident, it
was Badinsky who interviewed plaintiff and ultimately sent him to the hospital.
Consistent with his supervisory authority, he also inspected and photographed
the area where plaintiff had been injured, directed other workers to check every
window at the site to determine if they were inoperable and mandated other
61

remedial measures, and prepared a written report on the accident.
In light of these broad duties encompassing supervision over the construction
work, safety measures and preparing incident reports, we find that Badinsky
was far more than a mere employee, and that he clearly had the authority to
speak on behalf of defendants (see Spett v. President Monroe Bldg. & Mfg. Corp., 19
N.Y.2d 203, 206, 278 N.Y.S.2d 826, 225 N.E.2d 527; Johnson v. Hallam Enterpr., Ltd.,
208 A.D.2d 1110, 1111, 617 N.Y.S.2d 405; Kasper v. Buffalo Bills of Western New
York, 42 A.D.2d 87, 91‐92, 345 N.Y.S.2d 244; cf. Pascarella v. Sears, Roebuck and Co.,
280 A.D.2d 279, 720 N.Y.S.2d 461).

Laguesse v. Storytown U.S.A. Inc., 296 A.D.2d 798, 745 N.Y.S.2d 323 (3d Dep’t,
2002).   [D]efendants argue that Supreme Court committed reversible error by
admitting hearsay evidence at trial on the issue of defendantsʹ notice of the
alleged unreasonably unsafe condition. Plaintiff testified that after she was
struck, she left the exhibit with the assistance of her husband and immediately
stopped two park employees and described the accident to them. Over
defendantsʹ objection, Supreme Court permitted plaintiff to testify further that,
after the employees inspected the jailhouse, one of them told plaintiff that a
screw had broken. Defendants also objected to testimony given by plaintiffʹs
husband to the effect that, at the first aid station just a few minutes after the
accident, one of the employees told him that they had tried to fix the grate the
day before but it had broken again.

ʺ[T]he hearsay statement of an agent is admissible against his [or her] employer
under the admissions exception to the hearsay rule only if the making of the
statement is an activity within the scope of his [or her] authorityʺ (Loschiavo v.
Port Auth. of N.Y. & N.J., 58 N.Y.2d 1040, 1041, 462 N.Y.S.2d 440, 448 N.E.2d 1351;
see, Tyrrell v. Wal‐Mart Stores, supra, at 652, 737 N.Y.S.2d 43, 762 N.E.2d 921; Grant
v. Radamar Meat, 294 A.D.2d 398, 399, 742 N.Y.S.2d 349, 350; Tkach v. Golub Corp.,
265 A.D.2d 632, 634, 696 N.Y.S.2d 289). Here, plaintiffs allege that the employees
were maintenance workers, but did not ascertain their identities, much less
demonstrate that they were authorized by defendants to make the statements
f)  Conduct as an admission: Examples: flight; failure to call a witness; failure to
produce evidence; obstruction of justice; failure to reply to a written
communication; adoptive admissions.
g)  Instances of inadmissible admissions: offers in compromise (CPLR §4547);
post accident design modification or safety measures when made by defendant;
recall notices(split of authority); payment of medical and similar expenses by the
defendant.
62

Watson v. FHE Services, Inc., 257 A.D.2d 618, 684 N.Y.S.2d 283(2d Dep’t, 1999).
The Supreme Court erred in ordering the defendant to disclose records of repairs
made to the elevator in which the plaintiff was allegedly injured, subsequent to
the date of the subject accident. It is well settled that ʺ[e]vidence of subsequent
repairs * * * is not discoverable or admissible in a negligence case unless there is
an issue of maintenance or controlʺ (Cleland v. 60‐02 Woodside Corp., 221 A.D.2d
307, 308, 633 N.Y.S.2d 529; see, Niemann v. Luca, 214 A.D.2d 658, 625 N.Y.S.2d 267;
Klatz v. Armor El. Co., 93 A.D.2d 633, 462 N.Y.S.2d 677).

Barash v. Waldorf‐Astoria, 2003 WL 1793065 (N.Y.Sup.), 2003 N.Y. Slip Op.
50642(U) (Sup. Ct., N.Y. Co., 2003). For future reference, the court notes that
Petitioner has not set forth any basis for the pre‐action discovery of subsequent
repair records for the door. Even after the commencement of the action, the
plaintiff will have to provide a legal and factual basis sufficient to justify this
disclosure request. See Mercado v. St. Andrews Housing Development Fund Co., Inc.,
289 A.D.2d 148, 734 N.Y.S.2d 436 (1st Dept.2001) (subsequent repair records
discoverable although inadmissible only because no other means of proving
condition of the sidewalk on the date of accident); Watson v. FHE Serv., Inc., 257
A.D.2d 618, 684 N.Y.S.2d 283 (2nd Dept.1999) (subject elevatorʹs subsequent
repair records not discoverable where ownership and control not at issue). But
see Longo v. Armor Elevator Co., Inc., 278 A.D.2d 127, 720 N.Y.S.2d 443 (1st
Dept.2000) (discovery of elevator repair records allowed).

CRAMER  v. KUHNS, 213 A.D.2d 131, 630 N.Y.S.2d 128 (3d Dep’t 1995)

Inasmuch as we are remitting this matter for a new trial, we deem it advisable to
address one other issue raised by Harley. Harley contends that Supreme Court
erred in refusing to strike evidence of Harleyʹs postmanufacture side stand design
change. As a general rule, evidence of postmanufacture design modifications is
admissible in a products liability action only to prove a manufacturing defect
(see, Cover v. Cohen, 61 N.Y.2d 261, 270, 473 N.Y.S.2d 378, 461 N.E.2d 864).
Inasmuch as Supreme Court dismissed plaintiffʹs manufacturing defect claim at
the close of the evidence, Harley asserts that Supreme Court erred in denying its
motion to strike the evidence of its design modification. Plaintiff, on the other
hand, urges that the evidence is relevant to Harleyʹs continuing duty to warn.
Indeed, where a plaintiff is able to show that the manufacturer had knowledge of
a defect prior to an accident, evidence of subsequent design changes is admissible
(see, Haran v. Union Carbide Corp., 68 N.Y.2d 710, 711‐712, 506 N.Y.S.2d 311, 497
N.E.2d 678).

63

f)  Excited Utterance: The criteria for admissibility of a statement as a
spontaneous declaration or excited utterance are (1) the existence of an exciting
event, and (2) whether it was prompted thereby without time to reflect, that is
whether it was dominated by the nervous excitement of the event (Murphy Auto
Parts v. Ball, 101 U.S.App.D.C. 416, 249 F.2d 508, cert. den. 355 U.S. 932, 78 S.Ct.
413, 2 L.Ed.2d 415; cf. People v. Del Vermo, 192 N.Y. 470, 85 N.E. 690, Supra;
People v. Hughes, 56 A.D.2d 954, 393 N.Y.S.2d 96; Fisch, New York Evidence (2d
ed.), s 1000; 22A C.J.S. Criminal Law s 662(3)).
PEOPLE v. BROWN, 80 N.Y.2d 729, 610 N.E.2d 369, 594 N.Y.S.2d 696 (1993).

In defendantʹs trial on burglary and other charges, recordings of two 911
transmissions describing the events in progress were received in evidence
against him. His appeal presents a question of first impression in our Court:
whether such evidence may properly be admitted under the present sense
impression exception to the hearsay rule. For reasons to be explained, we hold
that the present sense impression exception is the law in this State and that it was
properly applied by the courts below in holding the evidence admissible.

At about 6:00 A.M. on July 12, 1987, the police received a 911 call reporting a
burglary in progress. The caller, who identified himself as ʺHenryʺ, said that he
was observing the break‐in from his apartment across the street. He described
the perpetrators as ʺone male black and one male white, wearing a blue t‐shirtʺ .
The police, responding to the reported burglary approximately three minutes
after the initial 911 transmission, observed two persons run out of the restaurant
through a broken glass door and climb up on the roof. One of the officers
apprehended a ʺmale black, later identified as defendant, Michael Brown, hiding
underneath an air‐conditioning duct located on the roofʺ

Police communications received another 911 call from ʺHenryʺ reporting ʺthat
one man had been caught but ʹthe white guy [was still] on the roofʹ ʺ and ʺthat
police backup was needed to catch himʺ. The other suspect, a white male, was
found on the roof and arrested. He was wearing a blue t‐shirt.

As generally stated, the present sense impression exception permits a court to
admit hearsay testimony of a statement describing or explaining an event or
condition made while the declarant was perceiving the event or condition, or
immediately thereafter (see, e.g., Fed.Rules Evid., rule 803[1]; Proposed N.Y.
Code of Evidence § 804[b][1] [1982] ). The theory of the exception is that a
statement describing an event when or immediately after it occurs is reliable
because the contemporaneity of the event observed and the hearsay statement
describing it leaves no time for reflection. Thus, the likelihood of deliberate
64

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